Rosenfeld Susan. Encyclopedia of American Historical Documents
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transfer of such property must be held affected by notice
of them. Alienation, in disregard of such restrictions, can
convey no title to the alienee.
In this case, however, it is said that the restriction
imposed by the act of 1851 was repealed by the act of
1862. And this is true if the act of 1862 can be regarded as
valid. But, was it valid?
The legislature of Texas, at the time of the repeal, con-
stituted one of the departments of a State government,
established in hostility to the Constitution of the United
States. It cannot be regarded, therefore, in the courts of
the United States, as a lawful legislature, or its acts as law-
ful acts. And, yet, it is an historical fact that the govern-
ment of Texas, then in full control of the State, was its only
actual government; and certainly if Texas had been a sepa-
rate State, and not one of the United States, the new gov-
ernment, having displaced the regular authority, and
having established itself in the customary seats of power,
and in the exercise of the ordinary functions of administra-
tion, would have constituted, in the strictest sense of the
words, a de facto government, and its acts, during the
period of its existence as such, would be effectual, and, in
almost all respects, valid. And, to some extent, this is true
of the actual government of Texas, though unlawful and
revolutionary, as to the United States.
It is not necessary to attempt any exact definitions,
within which the acts of such a State government must be
treated as valid, or invalid. It may be said, perhaps with
sufficient accuracy, that acts necessary to peace and good
order among citizens, such for example, as acts sanctioning
and protecting marriage and the domestic relations, gov-
erning the course of descents, regulating the conveyance
and transfer of property, real and personal, and providing
remedies for injuries to person and estate, and other simi-
lar acts, which would be valid if emanating from a lawful
government, must be regarded in general as valid when
proceeding from an actual, though unlawful government;
and that acts in furtherance or support of rebellion against
the United States, or intended to defeat the just rights of
citizens, and other acts of like nature, must, in general, be
regarded as invalid and void.
What, then, tried by these general tests, was the char-
acter of the contract of the military board with White and
Chiles?
That board, as we have seen, was organized, not for
the defence of the State against a foreign invasion, or for
its protection against domestic violence, within the mean-
ing of these words as used in the National Constitution,
but for the purpose, under the name of defence, of levy-
ing war against the United States. This purpose was,
undoubtedly, unlawful, for the acts which it contemplated
are, within the express definition of the Constitution,
treasonable.
It is true that the military board was subsequently
reorganized. It consisted, thereafter, of the governor and
two other members, appointed and removable by him;
and was, therefore, entirely subordinate to executive con-
trol. Its general object remained without change, but its
powers were “extended to the control of all public works
and supplies, and to the aid of producing within the State,
by the importation of articles necessary and proper for
such aid.”
And it was insisted in argument on behalf of some of
the defendants, that the contract with White and Chiles,
being for the purchase of cotton-cards and medicines, was
not a contract in aid of the rebellion, but for obtaining
goods capable of a use entirely legitimate and innocent,
and, therefore, that payment for those goods by the trans-
fer of any property of the State was not unlawful. We can-
not adopt this view. Without entering, at this time, upon
the inquiry whether any contract made by such a board can
be sustained, we are obliged to say that the enlarged pow-
ers of the board appear to us to have been conferred in fur-
therance of its main purpose, of war against the United
States, and that the contract, under consideration, even if
made in the execution of those enlarged powers, was still a
contract in aid of the rebellion, and, therefore, void. And
we cannot shut our eyes to the evidence which proves that
the act of repeal was intended to aid rebellion by facilitat-
ing the transfer of these bonds. It was supposed, doubtless,
that negotiation of them would be less difficult if they bore
upon their face no direct evidence of having come from
the possession of any insurgent State government. We can
give no effect, therefore, to this repealing act.
It follows that the title of the State was not divested by
the act of the insurgent government in entering into this
contract.
But it was insisted further, in behalf of those defen-
dants who claim certain of these bonds by purchase, or as
collateral security, that however unlawful may have been
the means by which White and Chiles obtained possession
of the bonds, they are innocent holders, without notice,
and entitled to protection as such under the rules which
apply to securities which pass by delivery. These rules were
fully discussed in Murray v. Lardner. We held in that case
that the purchaser of coupon bonds, before due, without
notice and in good faith, is unaffected by want of title in
the seller, and that the burden of proof in respect to notice
and want of good faith, is on the claimant of the bonds as
against the purchaser. We are entirely satisfied with this
doctrine.
Does the State, then, show affirmatively notice to
these defendants of want of title to the bonds in White and
Chiles?
It would be difficult to give a negative answer to this
question if there were no other proof than the legislative
942 ERA 5: Civil War and Reconstruction
acts of Texas. But there is other evidence which might
fairly be held to be sufficient proof of notice, if the rule to
which we have adverted could be properly applied to this
case.
But these rules have never been applied to matured
obligations. Purchasers of notes or bonds past due take
nothing but the actual right and title of the vendors.
The bonds in question were dated January 1, 1851,
and were redeemable after the 31st of December, 1864. In
strictness, it is true they were not payable on the day when
they became redeemable; but the known usage of the
United States to pay all bonds as soon as the right of pay-
ment accrues, except where a distinction between
redeemability and payability is made by law, and shown on
the face of the bonds, requires the application of the rule
respecting overdue obligations to bonds of the United
States which have become redeemable, and in respect to
which no such distinction has been made.
Now, all the bonds in controversy had become
redeemable before the date of the contract with White and
Chiles; and all bonds of the same issue which have the
indorsement of a governor of Texas made before the date
of the secession ordinance—and there were no others
indorsed by any governors—had been paid in coin on pre-
sentation at the Treasury Department; while, on the con-
trary, applications for the payment of bonds, without the
required indorsement, and of coupons detached from such
bonds, made to that department, had been denied.
As a necessary consequence, the negotiation of these
bonds became difficult. They sold much below the rates
they would have commanded had the title to them been
unquestioned. They were bought in fact, and under the
circumstances could only have been bought, upon specu-
lation. The purchasers took the risk of a bad title, hoping,
doubtless, that through the action of the National govern-
ment, or of the government of Texas, it might be converted
into a good one.
And it is true that the first provisional governor
of Texas encouraged the expectation that these bonds
would be ultimately paid to the holders. But he was not
authorized to make any engagement in behalf of the
State, and in fact made none. It is true, also, that the
Treasury Department, influenced perhaps by these rep-
resentations, departed to some extent from its original
rule, and paid bonds held by some of the defendants
without the required indorsement. But it is clear that this
change in the action of the department could not affect
the rights of Texas as a State of the Union, having a gov-
ernment acknowledging her obligations to the National
Constitution.
It is impossible, upon this evidence, to hold the defen-
dants protected by absence of notice of the want of title in
White and Chiles. As these persons acquired no right to
payment of these bonds as against the State, purchasers
could acquire none through them.
On the whole case, therefore, our conclusion is that
the State of Texas is entitled to the relief sought by her bill,
and a decree must be made accordingly.
Mr. Justice Grier, dissenting.
I regret that I am compelled to dissent from the opin-
ion of the majority of the court on all the points raised and
decided in this case.
The first question in order is the jurisdiction of the
court to entertain this bill in behalf of the State of Texas.
The original jurisdiction of this court can be invoked
only by one of the United States. The Territories have no
such right conferred on them by the Constitution, nor
have the Indian tribes who are under the protection of the
military authorities of the government.
Is Texas one of these United States? Or was she such
at the time this bill was filed, or since?
This is to be decided as a political fact, not as a legal
fiction. This court is bound to know and notice the public
history of the nation.
If I regard the truth of history for the last eight years,
I cannot discover the State of Texas as one of the United
States. I do not think it necessary to notice any of the very
astute arguments which have been advanced by the
learned counsel in this case, to find the definition of a
State, when we have the subject treated in a clear and
common sense manner by Chief Justice Marshall, in the
case of Hepburn & Dundass v. Ellxey. As the case is short,
I hope to be excused for a full report of it, as stated and
decided by the court. He says:
“The question is, whether the plaintiffs, as residents of
the District of Columbia, can maintain an action in the
Circuit Court of the United States for the District of Vir-
ginia. This depends on the act of Congress describing the
jurisdiction of the court. The act gives jurisdiction to the
Circuit Courts in cases between a citizen of the State in
which the suit is brought, and a citizen of another State. To
support the jurisdiction in this case, it must appear that
Columbia is a State. On the part of the plaintiff, it has been
urged that Columbia is a distinct political society, and is,
therefore, a ‘State’ according to the definition of writers on
general law. This is true; but as the act of Congress obvi-
ously uses the word ‘State’ in reference to that term as
used in the Constitution, it becomes necessary to inquire
whether Columbia is a State in the sense of that instru-
ment. The result of that examination is a conviction that
the members of the American Confederacy only are the
States contemplated in the Constitution. The House of
Representatives is to be composed of members chosen by
the people of the several States, and each State shall have
at least one representative. ‘The Senate of the United
Reconstruction 943
States shall be composed of two senators from each State.’
Each State shall appoint, for the election of the executive,
a number of electors equal to its whole number of senators
and representatives. These clauses show that the word
‘State’ is used in the Constitution as designating a member
of the Union, and excludes from the term the signification
attached to it by writers on the law of nations.”
Now we have here a clear and well-defined test by
which we may arrive at a conclusion with regard to the
questions of fact now to be decided.
Is Texas a State, now represented by members chosen
by the people of that State and received on the floor of
Congress? Has she two senators to represent her as a State
in the Senate of the United States? Has her voice been
heard in the late election of President? Is she not now held
and governed as a conquered province by military force?
The act of Congress of March 2d, 1867, declares Texas to
be a “rebel State,” and provides for its government until a
legal and republican State government could be legally
established. It constituted Louisiana and Texas the fifth
military district, and made it subject, not to the civil
authority, but to the “military authorities of the United
States.”
It is true that no organized rebellion now exists there,
and the courts of the United States now exercise jurisdic-
tion over the people of that province. But this is no test of
the State’s being in the Union; Dacotah is no State, and yet
the courts of the United States administer justice there as
they do in Texas. The Indian tribes, who are governed by
military force, cannot claim to be States of the Union.
Wherein does the condition of Texas differ from theirs?
Now, by assuming or admitting as a fact the present
status of Texas as a State not in the Union politically, I beg
leave to protest against any charge of inconsistently as to
judicial opinions heretofore expressed as a member of this
court, or silently assented to. I do not consider myself
bound to express any opinion judicially as to the constitu-
tional right of Texas to exercise the rights and privileges of
a State of this Union, or the power of Congress to govern
her as a conquered province, to subject her to military
domination, and keep her in pupilage. I can only submit to
the fact as decided by the political position of the govern-
ment; and I am not disposed to join in any essay to prove
Texas to be a State of the Union, when Congress have
decided that she is not. It is a question of fact, I repeat, and
of fact only. Politically, Texas is not a State in this Union.
Whether rightfully out of it or not is a question not before
the court.
But conceding now the fact to be as judicially assumed
by my brethren, the next question is, whether she has a
right to repudiate her contracts? Before proceeding to
answer this question, we must notice a fact in this case that
was forgotten in the argument. I mean that the United
States are no party to this suit, and refusing to pay the
bonds because the money paid would be used to advance
the interests of the rebellion. It is a matter of utter insignif-
icance to the government of the United States to whom
she makes the payment of these bonds. They are payable
to the bearer. The government is not bound to inquire into
the bona fides of the holder, nor whether the State of Taxes
has parted with the bonds wisely or foolishly. And although
by the Reconstruction Acts she is required to repudiate all
debts contracted for the purposes of the rebellion, this
does not annul all acts of the State government during the
rebellion, or contracts for other purposes, nor authorize
the State to repudiate them.
Now, whether we assume the State of Texas to be judi-
cially in the Union (though actually out of it) or not, it will
not alter the case. The contest now is between the State of
Texas and her own citizens. She seeks to annual a contract
with the respondents, based on the allegation that there
was no authority in Texas competent to enter into an
agreement during the rebellion. Having relied upon one
fiction, namely, that she is a State in the Union, she now
relies upon a second one, which she wishes this court to
adopt, that she was not a State at all during the five years
that she was in rebellion. She now sets up upon the plea of
insanity, and asks the court to treat all her acts made dur-
ing the disease as void.
We have had some very astute logic to prove that judi-
cially she was not a State at all, although governed by her
own legislature and executive as “a distinct political body.”
The ordinance of secession was adopted by the con-
vention on the 18th of February, 1861; submitted to a vote
of the people, and ratified by an overwhelming majority. I
admit that this was a very ill-advised measure. Still it was
the sovereign act of a sovereign State, and the verdict on
the trial of this question, “by battle,” as to her right to
secede, has been against her. But that verdict did not set-
tle any question not involved in the case. It did not settle
the question of her right to plead insanity and set aside all
her contracts, made during the pending of the trial, with
her own citizens, for food, clothing, or medicines. The
same “organized political body,” exercising the sovereign
power of the State, which required the indorsement of
these bonds by the governor, also passed the laws autho-
rizing the disposal of them without such indorsement. She
cannot, like the chameleon, assume the color of the object
to which she adheres, and ask this court to involve itself in
the contradictory positions, that she is a State in the Union
and was never out of it, and yet not a State at all for four
years, during which she acted and claims to be “an orga-
nized political body,” exercising all the powers and func-
tions of an independent sovereign State. Whether a State
944 ERA 5: Civil War and Reconstruction
de facto or de jure, she is estopped from denying her iden-
tity in disputes with her own citizens. If they have not ful-
filled their contract, she can have her legal remedy for the
breach of it in her own courts.
But the case of Hardenberg differs from that of the
other defendants. He purchased the bonds in open mar-
ket, bona fide, and for a full consideration. Now, it is to be
observed that these bonds are payable to bearer, and that
this court is appealed to as a court of equity. The argument
to justify a decree in favor of the commonwealth of Texas
as against Hardenberg, is simply this: these bonds, though
payable to bearer, are redeemable fourteen years from
date. The government has exercised her privilege of pay-
ing the interest for a term without redeeming the princi-
pal, which gives an additional value to the bonds. Ergo, the
bonds are dishonored. Ergo, the former owner has a right
to resume the possession of them, and reclaim them from
a bona fide owner by a decree of a court of equity.
This is the legal argument, when put in the form of a
logical sorites, by which Texas invokes our aid to assist her
in the perpetration of this great wrong.
A court of chancery is said to be a court of conscience;
and however astute may be the argument introduced to
defend this decree, I can only say that neither my reason
nor my conscience can give assent to it.
Mr. Justice Swayne:
I concur with my brother Grier as to the incapacity of
the State of Texas, in her present condition, to maintain an
original suit in this court. The question, in my judgment, is
one in relation to which this court is bound by the action
of the legislative department of the government.
Upon the merits of the case, I agree with the majority
of my brethren.
I am authorized to say that my brother Miller unites
with me in these views.
The Decree.
The decree overruled the objection interposed by way of
plea, in the answer of defendants to the authority of the
solicitors of the complainant to institute this suit, and to
the right of Texas, as one of the States of the National
Union, to bring a bill in this court.
It declared the contract of 12th January, 1865,
between the Military Board and White and Chiles void,
and enjoined White and Chiles from asserting any claim
under it, and decreed that the complainant was entitled to
receive the bonds and coupons mentioned in the contract,
as having been transferred or sold to White and Chiles,
which, at the several times of service of process, in this
suit, were in the possession, or under the control of the
defendants respectively, and any proceeds thereof which
had come into such possession or control, with notice of
the equity of the complainant.
It enjoined White, Chiles, Hardenberg, Birch, Mur-
ray, Jr., and other defendants, from setting up any claim to
any of the bonds and coupons attached, described in the
first article of said contract, and that the complainant was
entitled to restitution of such of the bonds and coupons
and proceeds as had come into the possession or control of
the defendants respectively.
And the court, proceeding to determine for which and
how many bonds the defendants respectively were
accountable to make restitution of, or make good the pro-
ceeds of, decreed that Birch and Murray were so account-
able for eight, numbered in a way stated in the decree,
with coupons attached; and one Stewart (a defendant men-
tioned in the note at page 702), accountable for four oth-
ers, of which the numbers were given, with coupons;
decreed that Birch and Murray, as also Stewart, should
deliver to the complainant the bonds for which they were
thus made accountable, with the coupons, and execute all
necessary transfers and instruments, and that payment of
those bonds, or any of them, by the Secretary of the Trea-
sury, to the complainant, should be an acquittance of Birch
and Murray, and of Stewart, to that extent, and that for
such payment this decree should be sufficient warrant to
the secretary.
And, it appearing—the decree went on to say—upon
the pleadings and proofs, that before the filing of the bill,
Birch and Murray had received and collected from the
United States the full amount of four other bonds, num-
bered, &c., and that Hardenberg, before the commence-
ment of the suit, had deposited thirty-four bonds,
numbered, &c., in the Treasury Department for redemp-
tion, of which bonds he claimed to have received payment
from the Secretary of the Treasury before the service of
process upon him in this suit, in respect to which payment
and the effect thereof the counsel for the said Birch and
Murray, and for the said Hardenberg respectively, desired
to be heard, it was ordered that time for such hearing
should be given to the said parties.
Both the complainant and the defendants had liberty
to apply for further directions in respect to the execution
of the decree.
Source:
U.S Reports, Vol. 74, p. 700.
Force Acts of 1870–1871
Series of three laws passed in 1870–1871, by the Radical
Republicans who controlled Congress, to protect the constitu-
Reconstruction 945
tional rights granted to blacks by the Fourteenth and Fifteenth
Amendments. The first act imposed severe penalties on any-
one preventing qualified citizens (black men) from voting. The
second act provided for federally appointed election supervi-
sors. The third act, aimed particularly at the Ku Klux Klan and
other terrorist organizations, empowered the president to sus-
pend the writ of habeas corpus in lawless areas. These statutes
resulted in martial law in nine South Carolina counties, thou-
sands of indictments, and hundreds of convictions. The
Supreme Court later declared various sections of the acts
unconstitutional, and most of their provisions were repealed in
1894.
________________________
h
_______________________
Force Act of May 31, 1870
To enforce the Right of Citizens of the United States to vote
in the several States of this Union, and for other Purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled, That all citizens of the United States who are or shall
be otherwise qualified by law to vote at any election by the
people in any State, Territory, district, county, city, parish,
township, school district, municipality, or other territorial
subdivision, shall be entitled and allowed to vote at all such
elections, without distinction of race, color, or previous
condition of servitude; any constitution, law, custom,
usage, or regulation of any State or Territory, or by or
under its authority, to the contrary notwithstanding.
Sec. 2. And be it further enacted, That if by or under
the authority of the constitution or laws of any State, or the
laws of any Territory, any act is or shall be required to be
done as a prerequisite or qualification for voting, and by
such constitution or laws persons or officers are or shall be
charged with the performance of duties in furnishing to
citizens an opportunity to perform such prerequisite, or to
become qualified to vote, it shall be the duty of every such
person and officer to give to all citizens of the United
States the same and equal opportunity to perform such
prerequisite, and to become qualified to vote without dis-
tinction of race, color, or previous condition of servitude;
and if any such person or officer shall refuse or knowingly
omit to give full effect to this section, he shall, for every
such offence, forfeit and pay the sum of five hundred dol-
lars to the person aggrieved thereby, to be recovered by an
action on the case, with full costs, and such allowance for
counsel fees as the court shall deem just, and shall also, for
every such offence, be deemed guilty of a misdemeanor,
and shall, on conviction thereof, be fined not less than five
hundred dollars, or be imprisoned not less than one month
and not more than one year, or both, at the discretion of
the court.
Sec. 3. And be it further enacted, That whenever, by or
under the authority of the constitution or laws of any State,
or the laws of any Territory, any act is or shall be required
to [be] done by any citizen as a prerequisite to qualify or
entitle him to vote, the offer of any such citizen to perform
the act required to be done as aforesaid shall, if it fail to be
carried into execution by reason of the wrongful act or
omission aforesaid of the person or officer charged with
the duty of receiving or permitting such performance or
offer to perform, or acting thereon, be deemed and held as
a performance in law of such act; and the person so offer-
ing and failing as aforesaid, and being otherwise qualified,
shall be entitled to vote in the same manner and to the
same extent if he had in fact performed such act; and any
judge, inspector, or other officer of election whose duty it
is or shall be to receive, count, certify, register, report, or
give effect to the vote of any such citizen who shall wrong-
fully refuse or omit to receive, count, certify, register,
report, or give effect to the vote of such citizen upon the
presentation by him of his affidavit stating such offer and
the time and place thereof, and the name of the officer or
person whose duty it was to act thereon, and that he was
wrongfully prevented by such person or officer from per-
forming such act, shall for every such offence forfeit and
pay the sum of five hundred dollars to the person
aggrieved thereby, to be recovered by an action on the
case, with full costs, and such allowance for counsel fees as
the court shall deem just, and shall also for every such
offence be guilty of a misdemeanor, and shall, on convic-
tion thereof, be fined not less than five hundred dollars, or
be imprisoned not less than one month and not more than
one year, or both, at the discretion of the court.
Sec. 4. And be it further enacted, That if any person,
by force, bribery, threats, intimidation, or other unlawful
means, shall hinder, delay, prevent, or obstruct, or shall
combine and confederate with others to hinder, delay, pre-
vent, or obstruct, any citizen from doing any act required
to be done to qualify him to vote or from voting at any
election as aforesaid, such person shall for every such
offence forfeit and pay the sum of five hundred dollars to
the person aggrieved thereby, to be recovered by an action
on the case, with full costs, and such allowance for counsel
fees as the court shall deem just, and shall also for every
such offence be guilty of a misdemeanor, and shall, on con-
viction thereof, be fined not less than five hundred dollars,
or be imprisoned not less than one month and not more
than one year, or both, at the discretion of the court.
Sec. 5. And be it further enacted, That if any person
shall prevent, hinder, control, or intimidate, or shall
attempt to prevent, hinder, control, or intimidate, any per-
son from exercising or in exercising the right of suffrage, to
whom the right of suffrage is secured or guaranteed by the
fifteenth amendment to the Constitution of the United
States, by means of bribery, threats, or threats of depriving
such person of employment or occupation, or of ejecting
946 ERA 5: Civil War and Reconstruction
such person from rented house, lands, or other property,
or by threats of refusing to renew leases or contracts for
labor, or by threats of violence to himself or family, such
person so offending shall be deemed guilty of a misde-
meanor, and shall, on conviction thereof, be fined not less
than five hundred dollars, or be imprisoned not less than
one month and not more than one year, or both, at the dis-
cretion of the court.
Sec. 6. And be it further enacted, That if two or more
persons shall band or conspire together, or go in disguise
upon the public highway, or upon the premises of another,
with intent to violate any provision of this act, or to injure,
oppress, threaten, or intimidate any citizen with intent to
prevent or hinder his free exercise and enjoyment of any
right or privilege granted or secured to him by the Consti-
tution or laws of the United States, or because of his hav-
ing exercised the same, such persons shall be held guilty of
felony, and, on conviction thereof, shall be fined or impris-
oned, or both, at the discretion of the court—the fine not
to exceed five thousand dollars, and the imprisonment not
to exceed ten years—and shall, moreover, be thereafter
ineligible to, and disabled from holding, any office or place
of honor, profit, or trust created by the Constitution or
laws of the United States.
Sec. 7. And be it further enacted, That if in the act of
violating any provision in either of the two preceding sec-
tions, any other felony, crime, or misdeameanor shall be
committed, the offender, or conviction of such violation of
said sections, shall be punished for the same with such
punishments as are attached to the said felonies, crimes,
and misdemeanors by the laws of the State in which the
offence may be committed.
Sec. 8. And be it further enacted, That the district
courts of the United States, within their respective dis-
tricts, shall have, exclusively of the courts of the several
States, cognizance of all crimes and offences committed
against the provisions of this act, and also, concurrently
with the circuit courts of the United States, of all causes,
civil and criminal, arising under this act, except as herein
otherwise provided, and the jurisdiction hereby conferred
shall be exercised in conformity with the laws and practice
governing United States courts, and all crimes and
offences committed against the provisions of this act may
be prosecuted by the indictment of a grand jury, or, in
cases of crimes and offences not infamous, the prosecution
may be either by indictment or information filed by the
district attorney in a court having jurisdiction.
Sec. 9. And be it further enacted, That the district
attorneys, marshals, and deputy marshals of the United
States, the commissioners appointed by the circuit and ter-
ritorial courts of the United States, with powers of arrest-
ing, imprisoning, or bailing offenders against the laws of
the United States, and every other officer who may be spe-
cially empowered by the President of the United States,
shall be, and they are hereby, specially authorized and
required, at the expense of the United States, to institute
proceedings against all and every person who shall violate
the provisions of this act, and cause him or them to be
arrested and imprisoned, or bailed, as the case may be, for
trial before such court of the United States or territorial
court as has cognizance of the offense. And with a view of
afford reasonable protection to all persons in their consti-
tutional right to vote without distinction of race, color, or
previous condition of servitude, and to the prompt dis-
charge of the duties of this act, it shall be the duty of the
circuit courts of the United States, and the superior courts
of the Territories of the United States, from time to time,
to increase the number of commissioners, so as to afford a
speedy and convenient means for the arrest and examina-
tion of persons charged with a violation of this act; and
such commissioners are hereby authorized and required to
exercise and discharge all the powers and duties conferred
on them by this act, and the same duties with regard to
offences created by this act as they are authorized by law
to exercise with regard to other offences against the laws of
the United States.
Sec. 10. And be it further enacted, That it shall be the
duty of all marshals and deputy marshals to obey and exe-
cute all warrants and precepts issued under the provisions
of this act, when to them directed; and should any marshal
or deputy marshal refuse to receive such warrant or other
process when tendered, or to use all proper means dili-
gently to execute the same, he shall, on conviction thereof,
be fined in the sum of one thousand dollars, to the use of
the person deprived of the rights conferred by this act.
And the better to enable the said commissioners to exe-
cute their duties faithfully and efficiently, in conformity
with the Constitution of the United States and the require-
ments of this act, they are hereby authorized and empow-
ered, within their districts respectively, to appoint, in
writing, under their hands, any one or more suitable per-
sons, from time to time, to execute all such warrants and
other process as may be issued by them in the lawful per-
formance of their respective duties, and the persons so
appointed to execute any warrant or process as aforesaid
shall have authority to summon and call to their aid the
bystanders or posse comitatus of the proper county, or
such portion of the land or naval forces of the United
States, or of the militia, as may be necessary to the perfor-
mance of the duty with which they are charged, and to
insure a faithful observance of the fifteenth amendment to
the Constitution of the United States; and such warrants
shall run and be executed by said officers anywhere in the
State of Territory within which they are issued.
Sec. 11. And be it further enacted, That any person
who shall knowingly and wilfully obstruct, hinder, or pre-
Reconstruction 947
vent any officer or other person charged with the execu-
tion of any warrant or process issued under the provisions
of this act, or any person or persons lawfully assisting him
or them from arresting any person for whose apprehen-
sion such warrant or process may have been issued, or
shall rescue or attempt to rescue such person from the
custody of the officer or other person or persons, or those
lawfully assisting as aforesaid, when so arrested pursuant
to the authority herein given and declared, or shall aid,
abet, or assist any person so arrested as aforesaid, directly
or indirectly, to escape from the custody of the officer or
other person legally authorized as aforesaid, or shall har-
bor or conceal any person for whose arrest a warrant or
process shall have been issued as aforesaid, so as to pre-
vent his discovery and arrest after notice or knowledge of
the fact that a warrant has been issued for the apprehen-
sion of such person, shall, for either of said offences, be
subject to a fine not exceeding one thousand dollars, or
imprisonment not exceeding six months, or both, at the
discretion of the court, on conviction before the district or
circuit court of the United States for the district or circuit
in which said offence may have been committed, or before
the proper court of criminal jurisdiction, if committed
within any one of the organized Territories of the United
States.
Sec. 12. And be it further enacted, That the commis-
sioners, district attorneys, the marshals, their deputies, and
the clerks of the said district, circuit, and territorial courts
shall be paid for their services the like fees as may be
allowed to them for similar services in other cases. The
person or persons authorized to execute the process to be
issued by such commissioners for the arrest of offenders
against the provisions of this act shall be entitled to the
usual fees allowed to the marshal for an arrest for each
person he or they may arrest and take before any such
commissioner as aforesaid, with such other fees as may be
deemed reasonable by such commissioner for such other
additional services as may be necessarily performed by him
or them, such as attending at the examination, keeping the
prisoner in custody, and providing him with food and lodg-
ing during his detention and until the final determination
of such commissioner, and in general for performing such
other duties as may be required in the premises; such fees
to be made up in conformity with the fees usually charged
by the officers of the courts of justice within the proper
district or county as near as may be practicable, and paid
out of the treasury of the United States on the certificate
of the judge of the district within which the arrest is made,
and to be recoverable from the defendant as part of the
judgment in case of conviction.
Sec. 13. And be it further enacted, That is shall be law-
ful for the President of the United States to employ such
part of the land or naval forces of the United States, or of
the militia, as shall be necessary to aid in the execution of
judicial process issued under this act.
Sec. 14. And be it further enacted, That whenever any
person shall hold office, except as a member of Congress
or of some State legislature, contrary to the provisions of
the third section of the fourteenth article of amendment of
the Constitution of the United States, it shall be the duty
of the district attorney of the United States for the district
in which such person shall hold office, as aforesaid, to pro-
ceed against such person, by writ of quo warranto, return-
able to the circuit or district court of the United States in
such district, and to prosecute the same to the removal of
such person from office; and any writ of quo warranto so
brought, as aforesaid, shall take precedence of all other
cases on the docket of the court to which it is made return-
able, and shall not be continued unless for cause proved to
the satisfaction of the court.
Sec. 15. And be it further enacted, That any person
who shall hereafter knowingly accept or hold any office
under the United States, or any State to which he is ineli-
gible under the third section of the fourteenth article of
amendment of the Constitution of the United States, or
who shall attempt to hold or exercise the duties of any such
office, shall be deemed guilty of a misdemeanor against
the United States, and, upon conviction thereof before the
circuit or district court of the United States, shall be
imprisoned not more than one year, or fined not exceeding
one thousand dollars, or both, at the discretion of the
court.
Sec. 16. And be it further enacted, That all persons
within the jurisdiction of the United States shall have the
same right in every State and Territory in the United States
to make and enforce contracts, to sue, be parties, give evi-
dence, and to the full and equal benefit of all laws and pro-
ceedings for the security of person and property as is
enjoyed by white citizens, and shall be subject to like pun-
ishment, pains, penalties, taxes, licenses, and exactions of
every kind, and none other, any law, statute, ordinance,
regulation, or custom to the contrary notwithstanding. No
tax or charge shall be imposed or enforced by any State
upon any person immigrating thereto from a foreign coun-
try which is not equally imposed and enforced upon every
person immigrating to such State from any other foreign
country; and any law of any State in conflict with this pro-
vision is hereby declared null and void.
Sec. 17. And be it further enacted, That any person
who, under color of any law, statute, ordinance, regulation,
or custom, shall subject, or cause to be subjected, any
inhabitant of any State or Territory to the deprivation of
any right secured or protected by the last preceding sec-
tion of this act, or to different punishment, pains, or penal-
ties on account of such person being an alien, or by reason
of his color or race, than is prescribed for the punishment
948 ERA 5: Civil War and Reconstruction
of citizens, shall be deemed guilty of a misdemeanor, and,
on conviction, shall be punished by fine not exceeding one
thousand dollars, or imprisonment not exceeding one year,
or both, in the discretion of the court.
Sec. 18. And be it further enacted, That the act to pro-
tect all persons in the United States in their civil rights,
and furnish the means of their vindication, passed April
nine, eighteen hundred and sixty-six, is hereby re-enacted;
and sections sixteen and seventeen hereof shall be
enforced according to the provisions of said act.
Sec. 19. And be it further enacted, That if at any elec-
tion for representative or delegate in the Congress of the
United States any person shall knowingly personate and
vote, or attempt to vote, in the name of any other person,
whether living, dead, or fictitious; or vote more than once
at the same election for any candidate for the same office;
or vote at a place where he may not be lawfully entitled to
vote; or vote without having a lawful right to vote; or do
any unlawful act to secure a right or an opportunity to vote
for himself or any other person; or by force, threat, men-
ace, intimidation, bribery, reward, or offer, or promise
thereof, or otherwise unlawfully prevent any qualified
voter of any State of the United States of America, or of
any Territory thereof, from freely exercising the right of
suffrage, or by any such means induce any voter to refuse
to exercise such right; or compel or induce by any such
means, or otherwise, any officer of an election in any such
State or Territory to receive a vote from a person not
legally qualified or entitled to vote; or interfere in any
manner with any officer of said elections in the discharge
of his duties; or by any of such means, or other unlawful
means, induce any officer of an election, or officer whose
duty it is to ascertain, announce, or declare the result of
any such election, or give or make any certificate, docu-
ment, or evidence in relation thereto, to violate or refuse
to comply with his duty, or any law regulating the same; or
knowingly and willfully receive the vote of any person not
entitled to vote, or refuse to receive the vote of any person
entitled to vote; or aid, counsel, procure, or advise any
such voter, person, or officer to do any act hereby made a
crime, or to omit to do any duty the omission of which is
hereby made a crime, or attempt to do so, every such per-
son shall be deemed guilty of a crime, and shall for such
crime be liable to prosecution in any court of the United
States of competent jurisdiction, and, on conviction
thereof, shall be punished by a fine not exceeding five hun-
dred dollars, or by imprisonment for a term not exceeding
three years, or both, in the discretion of the court, and
shall pay the costs of prosecution.
Sec. 20. And be it further enacted, That if, at any reg-
istration of voters for an election for representative or del-
egate in the Congress of the United States, any person
shall knowingly personate and register, or attempt to reg-
ister, in the name of any other person, whether living,
dead, or fictitious, or fraudulently register, or fraudulently
attempt to register, not having a lawful right so to do; or do
any unlawful act to secure registration for himself or any
other person; or by force, threat, menace, intimidation,
bribery, reward, or offer, or promise thereof, or other
unlawful means, prevent or hinder any person having a
lawful right to register from duly exercising such right; or
compel or induce, by any of such means, or other unlaw-
ful means, any officer of registration to admit to registra-
tion any person not legally entitled thereto, or interfere in
any manner with any officer of registration in the dis-
charge of his duties, or by any such means, or other unlaw-
ful means, induce any officer of registration to violate or
refuse to comply with his duty, or any law regulating the
same; or knowingly and wilfully receive the vote of any
person not entitled to vote, or refuse to receive the vote of
any person entitled to vote, or aid, counsel, procure, or
advice any such voter, person, or officer to do any act
hereby made a crime, or to omit any act, the omission of
which is hereby made a crime, every such person shall be
deemed guilty of a crime, and shall be liable to prosecu-
tion and punishment therefor, as provided in section nine-
teen of this act for persons guilty of any of the crimes
therein specified: Provided, That every registration made
under the laws of any State or Territory, for any State or
other election at which such representative or delegate in
Congress shall be chosen, shall be deemed to be a regis-
tration within the meaning of this act, notwithstanding the
same shall also be made for the purposes of any State ter-
ritorial, or municipal election.
Sec. 21. And be it further enacted, That whenever, by
the laws of any State or Territory, the name of any candi-
date or person to be voted for as representative or delegate
in Congress shall be required to be printed, written, or
contained in any ticket or ballot with other candidates or
persons to be voted for at the same election for State, ter-
ritorial, municipal, or local officers, it shall be sufficient
prima facie evidence, either for the purpose of indicting or
convicting any person charged with voting, or attempting
or offering to vote, unlawfully under the provisions of the
preceding sections, or for committing either of the
offenses thereby created, to prove that the person so
charged or indicted, voted, or attempted or offered to
vote, such ballot or ticket, or committed either of the
offenses named in the preceding sections of this act with
reference to such ballot. And the proof and establishment
of such facts shall be taken, held, and deemed to be pre-
sumptive evidence that such person voted, or attempted or
offered to vote, for such representative or delegate, as the
case may be, or that such offense was committed with ref-
erence to the election of such representative or delegate,
and shall be sufficient to warrant his conviction, unless it
Reconstruction 949
shall be shown that any such ballot, when cast, or
attempted or offered to be cast, by him, did not contain the
name of any candidate for the office of representative or
delegate in the Congress of the United States, or that such
offense was not committed with reference to the election
of such representative or delegate.
Sec. 22. And be it further enacted, That any officer of
any election at which any representative or delegate in the
Congress of the United States shall be voted for, whether
such officer of election be appointed or created by or
under any law or authority of the United States, or by or
under any State, territorial, district, or municipal law or
authority, who shall neglect or refuse to perform any duty
in regard to such election required of him by any law of the
United States, or of any State or Territory thereof; or vio-
late any duty so imposed, or knowingly do any act thereby
unauthorized, with intent to affect any such election, or
the result thereof; or fraudulently make any false certifi-
cate of the result of such election in regard to such repre-
sentative or delegate; or withhold, conceal, or destroy any
certificate of record so required by law respecting, con-
cerning, or pertaining to the election of any such repre-
sentative or delegate; or neglect or refuse to make and
return the same as so required by law; or aid, counsel, pro-
cure, or advise any voter, person, or officer to do any act by
this or any of the preceding sections made a crime; or to
omit to do any duty the omission of which is by this or any
of said sections made a crime, or attempt to do so, shall be
deemed guilty of a crime and shall be liable to prosecution
and punishment therefor, as provided in the nineteenth
section of this act for persons guilty of any of the crimes
therein specified.
Sec. 23. And be it further enacted, That whenever any
person shall be defeated or deprived of his election to any
office, except elector of President or Vice-President, rep-
resentative or delegate in Congress, or member of a State
legislature, by reason of the denial to any citizen or citizens
who shall offer to vote, of the right to vote, on account of
race, color, or previous condition of servitude, his right to
hold and enjoy such office, and the emoluments thereof,
shall not be impaired by such denial; and such person may
bring any appropriate suit or proceeding to recover pos-
session of such office, and in cases where it shall appear
that the sole question touching the title to such office
arises out of the denial of the right to vote to citizens who
so offered to vote, on account of race, color, or previous
condition of servitude, such suit or proceeding may be
instituted in the circuit or district court of the United
States of the circuit or district in which such person
resides. And said circuit or district court shall have, con-
currently with the State courts, jurisdiction thereof so far
as to determine the rights of the parties to such office by
reason of the denial of the right guaranteed by the fif-
teenth article of amendment to the Constitution of the
United States, and secured by this act.
Force Act of February 28, 1870
To amend an Act approved May thirty-one, eighteen hun-
dred and seventy, entitled “An Act to enforce the Rights of
Citizens of the United States to vote in the several States of
this Union, and for other Purposes.”
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled, That section twenty of the “Act to enforce the rights
of citizens of the United States to vote in the several States
of this Union, and for other purposes,” approved May
thirty-one, eighteen hundred and seventy, shall be, and
hereby is, amended so as to read as follows:—
“Sec. 20. And be it further enacted, That if, [at] any
registration of voters for an election for representative or
delegate in the Congress of the United States, any person
shall knowingly personate and register, or attempt to regis-
ter, in the name of any other person, whether living, dead,
or fictitious, or fraudulently register, or fraudulently
attempt to register, not having a lawful right so to do; or do
any unlawful act to secure registration for himself or any
other person; or by force, threat, menace, intimidation,
bribery, reward, or offer, or promise thereof, or other
unlawful means, prevent or hinder any person having a
lawful right to register from duly exercising such right; or
compel or induce, by any of such means, or other unlawful
means, any officer of registration to admit to registration
any person not legally entitled thereto, or interfere in any
manner with any officer of registration in the discharge of
his duties, or by any such means, or other unlawful means,
induce any officer of registration to violate or refuse to
comply with his duty or any law regulating the same; or if
any such officer shall knowingly and wilfully register as a
voter any person not entitled to be registered, or refuse to
so register any person entitled to be registered; or if any
such officer or other person whose duty it is to perform
any duty in relation to such registration or election, or to
ascertain, announce, or declare the result thereof, or give
or make any certificate, document, or evidence in relation
thereto, shall knowingly neglect or refuse to perform any
duty required by law, or violate any duty imposed by law,
or do any act unauthorized by law relating to or affecting
such registration or election, or the result thereof, or any
certificate, document, or evidence in relation thereto, or if
any person shall aid, counsel, procure, or advice any such
voter, person, or officer to do any act hereby made a crime,
or to omit any act the omission of which is hereby made a
crime, every such person shall be deemed guilty of a
crime, and shall be liable to prosecution and punishment
therefor as provided in section nineteen of said act of May
thirty-one, eighteen hundred and seventy, for persons
950 ERA 5: Civil War and Reconstruction
guilty of any of the crimes therein specified: Provided,
That every registration made under the laws of any State
or Territory for any State or other election at which such
representative or delegate in Congress shall be chosen,
shall be deemed to be a registration within the meaning of
this act, notwithstanding the same shall also be made for
the purposes of any State, territorial, or municipal elec-
tion.”
Sec. 2. And be it further enacted, That whenever in
any city or town having upward of twenty thousand inhab-
itants, there shall be two citizens thereof who, prior to any
registration of voters for an election for representative or
delegate in the Congress of the United States, or prior to
any election at which a representative to delegate in
Congress is to be voted for, shall make known, in writing,
to the judge of the circuit court of the United States for the
circuit wherein such city or town shall be, their desire to
have said registration, or said election, or both, guarded
and scrutinized, it shall be the duty of the said judge of the
circuit court, within not less than ten days prior to said reg-
istration, if one there be, or, if no registration be required,
within not less than ten days prior to said election, to open
the said circuit court at the most convenient point in said
circuit. And the said court, when so opened by said judge,
shall proceed to appoint and commission, from day to day
and from time to time, and under the hand of the said cir-
cuit judge, and under the seal of said court, for each elec-
tion district or voting precinct in each and every such city
or town as shall, in the manner herein prescribed, have
applied therefor, and to revoke, change, or renew said
appointment from time to time, two citizens, residents of
said city or town, who shall be of different political parties,
and able to read and write the English language, and who
shall be known and designated as supervisors of election.
And the said circuit court, when opened by the said circuit
judge as required herein, shall therefrom and thereafter,
and up to and including the day following the day of elec-
tion, be always open for the transaction of business under
this act, and the powers and jurisdiction hereby granted
and conferred shall be exercised as well in vacation as in
term time; and a judge sitting at chambers shall have the
same powers and jurisdiction, including the power of
keeping order and of punishing any contempt of his
authority, as when sitting in court.
Sec. 3. And be it further enacted, That whenever, from
sickness, injury, or otherwise, the judge of the circuit court
of the United States in any judicial circuit shall be unable
to perform and discharge the duties by this act imposed, it
shall be his duty, and he is hereby required, to select and
to direct and assign to the performance thereof, in his
place and stead, such one of the judges of the district
courts of the United States within his circuit as he shall
deem best; and upon such selection and assignment being
made, it shall be lawful for, and shall be the duty of, the
district judge so designated to perform and discharge, in
the place and stead of the said circuit judge, all the duties,
powers, and obligations imposed and conferred upon the
said circuit judge by the provisions of this act.
Sec. 4. And be it further enacted, That it shall be the
duty of the supervisors of election, appointed under this
act, and they and each of them are hereby authorized and
required, to attend at all times and places fixed for the reg-
istration of voters, who, being registered, would be entitled
to vote for a representative or delegate in Congress, and to
challenge any person offering to register; to attend at all
times and places when the names of registered voters may
be marked for challenge, and to cause such names of reg-
istered as they shall deem proper to be so marked; to
make, when required, the lists, or either of them, provided
for in section thirteen of this act, and verify the same; and
upon any occasion, and at any time when in attendance
under the provisions of this act, to personally inspect and
scrutinize such registry, and for purposes of identification
to affix their or his signature to each and every page of the
original list, and of each and every copy of any such list of
registered voters, at such times, upon each day when any
name may or shall be received, entered, or registered, and
in such manner as will, in their or his judgment, detect and
expose the improper or wrongful removal therefrom, or
addition thereto, in any way, of any name or names.
Sec. 5. And be it further enacted, That it shall also be
the duty of the said supervisors of election, and they, and
each of them, are hereby authorized and required, to
attend at all times and places for holding elections of rep-
resentatives or delegates in Congress, and for counting the
votes cast at said elections; to challenge any vote offered by
any person whose legal qualifications the supervisors, or
either of them, shall doubt; to be and remain where the
ballot-boxes are kept at all times after the polls are open
until each and every vote cast at said time and place shall
be counted, the canvass of all votes polled be wholly com-
pleted, and the proper and requisite certificates or returns
made, whether said certificates or returns be required
under any law of the United States, or any States, territo-
rial, or municipal law, and to personally inspect and scruti-
nize, from time to time, and at all times, on the day of
election, the manner in which the voting is done, and the
way and method in which the poll-books, registry-lists, and
tallies or check-books, whether the same are required by
any law of the United States, or any State, territorial, or
municipal law, are kept; and to the end that each candidate
for the office of representative or delegate in Congress
shall obtain the benefit of every vote for him cast, the said
supervisors of election are, and each of them is, hereby
required, in their or his respective election districts or vot-
ing precincts, to personally scrutinize, count, and canvass
Reconstruction 951